Ex Parte Anglin et al

Patent Trial and Appeal Board

May 22, 2013

12199300 (P.T.A.B. May. 22, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/199,300 08/27/2008 Howard Neil Anglin AUS920080171US1 5719
46129 7590 05/23/2013
IBM CORPORATION
C/O DARCELL WALKER, ATTORNEY AT LAW
P. O. Box 25048
HOUSTON, TX 77265
EXAMINER
HUERTA, ALEXANDER Q
ART UNIT PAPER NUMBER
2427
MAIL DATE DELIVERY MODE
05/23/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HOWARD NEIL AGLIN, KANDAGATLA CHAITANYA,
EMILY JANE RATLISFF, ELIZABETH SILVIA, and
YVONNE MARIE YOUNG
____________________

Appeal 2013-000311
Application 12/199,300
Technology Center 2400
____________________

Before THU A. DANG, JAMES R. HUGHES,
and GREGORY J. GONSALVES, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 3-7, and 9-15 (App. Br. 2). Claims 2 and 8 have been canceled
(App. Br. 12 and 13). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
Appellants’ invention is directed to a system and method that provides
communications between multiple remote control devices; wherein, a
primary remote control device uses shared control access information from
any secondary remote control device to control the secondary remote control
access of programing (Abstract; Spec. 3:1-22).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A method for controlling tuning selections through
remote-to-remote communications comprising:

determining a number of remote control devices in a
system, the number of remote control devices including a
primary remote control device and one or more secondary
remote control devices;

creating a remote control device profile for each
secondary remote control device, each profile defining control
limitations for a corresponding secondary remote control
device;

detecting at the primary remote control device via a
communication network an attempt by a secondary remote
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control device to access a program channel through a local
program tuner device;
identifying at the primary remote control device the
specific secondary remote control device making the access
attempt;

identifying at the primary remote control device the
program channel that is the target of the access attempt; and

determining at the primary remote control device whether
the secondary remote control device making the access is
allowed to access the program channel that is the target of the
access attempt based on the profile of the secondary remote
making the access attempt.

C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Nickum US 6,359,661 B1 Mar. 19, 2002
Pittard US Pat. App. No.: 2008/0297369 A1 Dec. 4, 2008
Kim US 7,647,610 B2 Jan. 12, 2010
(Filed Aug. 18, 2004)
Thompson US Pat. App. No.: 2008/0022305 A1 Jan. 24, 2008
Morad US Pat. App. No.: 2008/0120675 A1 May 22, 2008

Claims 1, 3-61, 9, 11, and 12 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Nickum in view of Pittard.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nickum in view of Pittard and Kim.

1 Claim 2 has been canceled (App. Br. 12).
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Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nickum in view of Pittard and Thompson.
Claims 13-15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nickum in view of Pittard and Morad.
Claims 1, 4-72, 9, 13, and 15 are provisionally rejected on the ground
of nonstatutory obviousness-type double patenting as being unpatentable
over claims 1, 5-10, 12, and 16 of copending Application No. 12/433,2353.

II. ISSUES
The dispositive issues before us are whether the Examiner has erred in
determining that the combination of Nickum and Pittard teaches or would
have suggested:
1. “detecting at the primary remote control device via a
communication network an attempt by a secondary remote control device to
access a program channel through a local program tuner device” and
“determining at the primary remote control device whether the secondary
remote control device making the access is allowed to access the program
channel that is the target of the access attempt based on the profile of the
secondary remote making the access attempt” (claim 1, emphasis added);
2. “when the determination is that the secondary remote control
device making the access attempt and the primary remote control device
detecting the access attempt are not on the same local network, identifying
the local network of the secondary remote control device making the access

2 Claim 8 has been canceled (App. Br. 13).
3 Application No. 12/433,235 is under Appeal as Appeal No. 2012-009349.
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attempt, accessing the profile of the secondary remote control device” (claim
7, emphasis added); and
3. “determining whether a threshold time for the tuner on the target
programming channel has been reached; and when the determination is that
the threshold was reached, recording, and storing the time channel and time
the tuner was on that channel” (claim 10, emphasis added).

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Nickum
1. Nickum discloses a television programming control circuitry
embedded in a remote control device to allow programming access using
associated user profile data, such that each viewer is restricted according to
the programming controls embodied in the memory of the remote control
device (col. 1, ll. 55-60). In the alternative, the control circuitry is
incorporated in the television receiver, a cable control box, or a separate
tuner (col. 4, ll. 53-56).
Pittard
2. Pittard discloses a remote control system 10 having satellite
control devices 30-38a that communicate with a central remote control 20;
wherein, the central remote control 20 directly communicates with an
electronic device 40, such as a DVD player, video cassette recorder (VCR),
a DVD drive, or a similar device coupled to a display 42 (¶ [0009]).
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3. Data sharing exists between each satellite control device 30-38a
and the central remote control 20, where the communication can be wired or
wireless, such as infrared (IR) or radio frequency (RF) (¶ [0014]).
Kim
4. Kim discloses a system for interfacing between a Digital
Television (TV) and a plurality of remote controllers; wherein, a control unit
13 within the TV determines whether a remote controller identifier is
included within a signal received by a reception unit 11 (col. 8, ll. 17-19).
When the remote controller identifier is missing, the control unit 13
recognizes the remote controller as a default-set remote controller and
generates an event signal corresponding to the recognized remote controller
(col. 8, ll. 25-30).
Thompson
5. Thompson discloses a method for generating a channel list that
includes a step of adding a channel to a schedule list 506A, if the channel the
user is viewing is determined to be a channel of interest, where the duration
of the time period for which the user tunes onto the channel exceeds a
threshold time duration tthresh (¶ [0038]).

IV. ANALYSIS
Claims 1, 3-6, 9, 11, and 12
Appellants contend that although “Pittard [discloses that] a primary
remote receives a signal from a satellite remote,” Pittard “does not inquire
about whether the satellite remote has the authority to make a particular
request” (App. Br. 7). Appellants argue that “Nickum describes multiple
remotes with each remote communicating directly with the tuning device
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and not through a communication network” (id.). Appellants contend
further that “Nickum teaches not having a primary remote” (App. Br. 8).
Appellants assert further “that Pittard and Nickum teach opposing concepts”
since “the objective of Nickum is to reduce the need for a tuner to determine
which programming a view is allowed to view;” wherein, “that decision is
placed in the remotes” and “Pittard describes mini remotes that are an
extension of the main or primary remote control device” (id.). Appellants
finally contend that the “combining of the Nickum and Pittard references
would not produce a primary remote control device with intelligence to
control access to programming from multiple remote control devices” and
that “neither reference provides the motivation to have a central or primary
remote control device with the capability to control access of multiple
secondary remote control devices” (id.).
However, the Examiner finds that “Nickum discloses a system for
controlling access to television programming using multiple remote controls
each of which stores a user profile that is used to control programming
access” (Ans. 5). The Examiner notes that “Pittard [is] relied upon to teach
a remote control system with multiple satellite remote controls and a primary
remote control” (id.). Thus, one would have been motivated “to apply the
technique of providing primary and secondary remote control devices as
taught by Pittard, to improve the multiple profile remote control system of
Nickum for the predictable result of providing a master remote control that
acts as a gateway in a multiple controller system providing access control
thus reducing the need for complicated circuitry located in the electronic”
(id.).
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We give the claim its broadest reasonable interpretation consistent
with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). Claim 1 does not place any limitation on what “communication
network” means, includes, or represents other than the primary remote
control device detects an attempt by a secondary remote control to access
programming through it. Thus, we give “detecting at the primary remote
control device via a communication network” its broadest reasonable
interpretation as detecting at the primary remote control over any network of
shared data, as consistent with the Specification and claim 1.
Nickum discloses a television programming control circuitry
embedded in a remote control device to allow programming access using
associated user profile data (FF 1). We find that the television programming
control circuitry comprises “determining … whether the … remote control
device making the access is allowed to access the program channel that is
the target of the access attempt based on the profile of the … remote making
the access attempt” (claim 1).
In addition, Pittard discloses a remote control system having satellite
control devices that communicate with a central remote control; wherein,
data sharing exists between the satellite control devices and the central
remote over a wired or wireless connection (FF 2 and 3). We find that the
wired or wireless connection between the central remote control and the
satellite control devices constitute a network of shared data. Accordingly,
we find that Pittard’s disclosure of the communication shared between the
satellite control devices and the central remote control comprises “detecting
at the primary remote control device via a communication network an
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attempt by a secondary remote control device to access a program channel
through a local program tuner device” (claim 1).
In view of our claim construction above, we find that the combination
of Nickum and Pittard at least suggests all the claimed limitations of claim
1.
Though Appellants also contend that “that Pittard and Nickum teach
opposing concepts” since Nickum teaches “reduc[ing] the need for a tuner”
and “Pittard describes mini remotes that are an extension of the main or
primary remote control device (App. Br. 6), our reviewing court has held
that “‘[a] reference may be said to teach away when a person of ordinary
skill, upon [examining] the reference, would be discouraged from following
the path set out in the reference, or would be led in a direction divergent
from the path that was taken by the applicant.’” Para-Ordnance Mfg., Inc. v.
SGS Importers Int’l., Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995) (quoting In
re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)).
Appellants have not identified persuasive support for a direction
divergent from the claimed invention since placing all control in the remote
control as opposed to the tuner does not teach away from having multiple
remote controls. Here, the Appellants appear to have viewed the reference
from a different perspective than the Examiner. The issue here is not
whether all “decision-making intelligence” and control resides in a tuner or
the primary remote (Reply Br. 1); but rather whether a person of ordinary
skill, upon reading Nickum, would be discouraged from using central and
satellite remote controls as taught by Pittard.
We also agree with the Examiner’s explicit motivation that combining
the references would be obvious “to improve the multiple profile remote
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control system of Nickum for the predictable result of providing a master
remote control that acts as a gateway in a multiple controller system
providing access control thus reducing the need for complicated circuitry
located in the electronic” (Ans. 5). The Supreme Court has stated that “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Thus, we find no error in the Examiner’s finding that the combination
of Nickum’s television programming control circuitry embedded within the
central remote control for control of access to programming from the
satellite control devices, as disclosed in Pittard, produces a primary remote
control that detects and controls access to programming from secondary
remote control devices which would be obvious (Ans. 5; FF1-3).
Accordingly, we find no error in the Examiner’s rejection of claim 1
under 35 U.S.C. § 103(a) over Nickum in view of Pittard. Further,
independent claim 11 having similar claim language and claims 3-6, 9, and
12 (depending from claims 1 and 11) which have not been argued separately,
fall with claim 1. Because our affirmance of the rejection of claims 1, 4-6,
and 9 as unpatentable over Nickum in view of Pittard is dispositive as to
each claim on appeal, we do not reach the Examiner’s cumulative rejections
of provisionally rejected claims 1, 4-6, and 9 on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1, 5-
10, 12, and 16 of copending Application No. 12/433,235.
Claim 7
Appellants contend that “Kim does not address … whether a
secondary remote [is] not in the same local network” (App. Br. 9).
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After reviewing the record on appeal, we agree with Appellants.
Though we agree with the Examiner that Kim does disclose that the system
detects whether a remote controller identifier data is included within the
signal and, if not found, labels the remote controller as a default-set remote
controller (FF 4), we cannot find any suggestion in the Examiner’s recited
portion of Kim that the combination of Nickum, Pittard, and Kim teaches
that “when the determination is that the secondary remote control device
making the access attempt and the primary remote control device detecting
the access attempt are not on the same local network, identifying the local
network of the secondary remote control device making the access attempt,
accessing the profile of the secondary remote control device” as required by
claim 7 (emphasis, added) in the recited portions of ref referenced by the
Examiner. That is, Kim does not disclose detecting whether or not the
primary remote control device and the secondary remote control device are
on the same local network.
Accordingly, we find that Appellants have shown that the Examiner
erred in rejecting claim 7 under 35 U.S.C. § 103(a) over Nickum in view of
Pittard and Kim.
We note, however, that Appellants present no arguments pertaining to
the Examiner’s provisional double patenting rejection of claims 1, 4-9, 13,
and 15 (Ans. 4-7). See App. Br. 5-10; Reply Br. 1-3.
Accordingly, we summarily sustain this rejection including claim 7.
See Manual of Patent Examining Procedure (MPEP) § 1205.02, 8th ed., Rev.
8, July 2010 (“If a ground of rejection stated by the examiner is not
addressed in the [A]ppellant’s brief, that ground of rejection will be
summarily sustained by the Board”).
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Claim 10
Appellants contend that “Thompson does not describe, teach or
suggest th[e] limitation” of “a threshold that the viewer must watch a
channel for the program to qualify to be listed” (App. Br. 10).
However, the Examiner finds that “Thompson discloses a system and
method for selecting from a plurality of channels transmitting media
programs and in particular a system and method for adaptively generating an
ordered schedule of channels based on viewer channel surfing habits” (Ans.
7). The Examiner notes that Thompson discloses that “ if a channel is tuned
to for a time period that exceeds a predetermined threshold of time, then the
channel will be added to a scheduled list” (id.).
Thompson discloses a method for generating a channel list that
includes a step of adding a channel to a schedule list, if the channel is
determined to be a channel of interest, where the user has tuned to the
channel for a time exceeding the threshold time duration (FF 5). We find
that the method comprise “determining whether a threshold time for the
tuner on the target programming channel has been reached; and when the
determination is that the threshold was reached, recording, and storing the
time channel and time the tuner was on that channel” (claim 10).
In view of our claim construction above, we find that the combination
of Nickum, Pittard, and Thompson at least suggests providing all the claim
limitations of claim 10.
Accordingly, we find no error in the Examiner’s rejection of claim 10
under 35 U.S.C. § 103(a) over Nickum in view of Pittard and Thompson.
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Claims 13-15
Appellants argue that “Morad does not [disclose] the limitations of
claim 13 of Applicant’s present invention” without particularly pointing out
which claim limitation is not taught in Morad (App. Br.10).
A statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim. See 37 C.F.R.
§ 41.37(c)(vii). Moreover, mere attorney arguments and conclusory
statements that are unsupported by factual evidence are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see
also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); and
Ex parte Belinne, No. 2009-004693, slip op. at 7-8 (BPAI Aug. 10, 2009)
(informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.
Appellants’ arguments fail to comply with 37 CFR 1.111 (b) because they
amount to a general allegation that the claims define a patentable invention
without specifically pointing out how the language of the claims patentably
distinguishes them from the reference.
We therefore affirm the Examiner’s rejection of claim 13 under
35 U.S.C. § 103 as being unpatentable over Nickum in view of Pittard and
Morad. Claims 14 and 15 (depending from claim 13), which have not been
argued separately, fall with claim 13. Because our affirmance of the
rejection of claims 13 and 15 as unpatentable over Nickum in view of Pittard
and Morad is dispositive as to each claim on appeal, we do not reach the
Examiner’s cumulative rejections of provisionally rejected claims 13 and 15
on the ground of nonstatutory obviousness-type double patenting as being
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unpatentable over claims 1, 5-10, 12, and 16 of copending Application No.
12/433,235.

V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1, 3-6, and 9-15 under 35 U.S.C.
§ 103(a) is affirmed while the rejection of claim 7 under 35 U.S.C. § 103(a)
is reversed. However, the provisional double patenting obviousness type
rejection of claims 1, 4-7, 9, 13, and 15 is sustained.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

Vsh